COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Bray
Argued at Norfolk, Virginia
DAVID L. LINDSEY
v. Record No. 2553-93-1 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA MAY 30, 1995
FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
Glen A. Tyler, Judge
James C. Hawks for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
David L. Lindsey appeals his conviction of distribution of
cocaine in violation of Code § 18.2-248. Lindsey argues that the
trial judge abused his discretion by denying Lindsey's motion for
a continuance of his trial so he could be represented by
privately retained counsel. We disagree and affirm Lindsey's
conviction.
"[B]road discretion is afforded the trial court in
determining whether a continuance to obtain counsel should be
granted. `[O]nly an unreasoning and arbitrary "insistence upon
expeditiousness in the face of a justifiable request for delay"
violates the right to the assistance of counsel.'" Bolden v.
Commonwealth, 11 Va. App. 187, 191, 397 S.E.2d 534, 536
(1990)(citation omitted), cert. denied, 112 S. Ct. 382 (1991).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
A criminal defendant's right, if he can provide counsel for
himself, to be represented by an attorney of his own choosing is
only a qualified right, and the opportunity guaranteed to a
defendant to secure counsel of his choice is only "a fair one."
Paris v. Commonwealth, 9 Va. App. 454, 460, 389 S.E.2d 718, 721
(1990) (citation omitted). "`The limit of the right is
necessarily found in the countervailing state interest . . . in
proceeding with prosecutions on an orderly and expeditious
basis.'" Id.
Lindsey had a court-appointed attorney assigned to his case
on September 30, 1993. Lindsey's December 8, 1993 trial date was
set on November 19, 1993. Two days prior to trial, Lindsey
retained private counsel. The motion for continuance was made on
the day of trial. The Commonwealth was ready to proceed and its
summonsed witnesses, one of whom was from out of town, were
present and ready to testify.
Lindsey failed to make a "justifiable request for a delay."
"In order to justify a continuance `by the last minute change of
counsel, exceptional circumstances must exist.'" Feigley v.
Commonwealth, 16 Va. App. 717, 721, 432 S.E.2d 520, 523 (1993).
No exceptional circumstances are shown in the record. Lindsey
gave no reason for his failure to retain counsel only two days
before court.
Moreover, Lindsey has not shown that the denial of a
continuance prejudiced his case. The record discloses that
Lindsey's court-appointed counsel was well prepared for trial,
- 2 -
that he had sought and obtained discovery and had prepared a
motion in limine which he argued at the trial. Further,
Lindsey's only witness testified at the trial. Accordingly, the
trial judge did not abuse his discretion by denying appellant's
motion for a continuance.
Affirmed.
- 3 -